Sunday, March 26, 2006

Another Supreme Court Decision I Don't Agree With

From RealClearPolitics.com:

The case arose after a Georgia woman, Janet Randolph, called police to say her husband had absconded with their son. When officers arrived, she told them he was also a cocaine user. About that time, Scott Randolph showed up, said he had taken the boy for fear she would spirit him out of the country, and denied using drugs.

One of the police, who had no search warrant, asked the husband if he could search the house. He said no. So the officer asked the wife, who obliged.

The cop went in and found a straw coated with a powdery substance. When Scott was indicted for cocaine possession, he argued that the search was invalid because he had refused consent.

The trial court rejected the claim because, it said, his wife had authority to admit police to their joint residence. But the Supreme Court took a different view: While she could have let them in when her husband was absent, he was present, and therefore had the right to bar their entry. Only if there was an emergency, such as the threat of domestic violence, could the cops enter over his objection.

Who's to determine what constitutes an "emergency"? I agree with the trial court--the police had permission to enter the house. I can't imagine it takes a unanimous approval from all house occupants before police can enter.

Actually, in order to avoid this mess, the cops have to do one of two things:

One, make sure joint owners are NOT there. Under the facts of the case, the woman could have given consent to a search if the husband had not been there.

Two, and most appropriately, get a search warrant. For far too long the courts have allowed searches without warrants under a whole host of exceptions that have to a certain extent eviscerated the 4th Amendment. Just look up all the exceptions to searcing a car!!

By the way, it is not hard to get a warrant, even in this case. Would the police have found the straw if they waited for a warrant--probably not, but that is the risk they run. Eventually, if this guy is a user, he would have been caught--they almost always are.

In this case, the Supreme Court got it right. People have a very high expectation of privacy in their home and the police should be respecting that.

Of course the policeman had the right to enter the house. The wife (a resident of the house)had granted him permission to investigate. The only reasons that people would object to an investigation of their home is for privacy or because they are hiding something illegal. Since his wife was accusing him of doing something illegal, he would not have objected because he felt his privacy was being violated. This would cause greater suspicion. This should have been a red flag that he was doing what the wife accused him of or something worse. The wife lived there too and had the right to allow police in.